US v. Johnny Beason, No. 11-4676 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4676 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY BEASON, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (1:10-cr-00105-IMK-JSK-1) Argued: February 1, 2013 Decided: April 19, 2013 Before WILKINSON and FLOYD, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation. Reversed by unpublished opinion. Judge Floyd wrote the majority opinion, in which Judge Goodwin joined. Judge Wilkinson wrote a dissenting opinion. ARGUED: Kristen Marie Leddy, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Brandon Scott Flower, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee. ON BRIEF: Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 FLOYD, Circuit Judge: Appellant Johnny Beason pled guilty to possessing contraband in prison in violation of 18 U.S.C. § 1791(a)(2), (d)(1)(F) (2006) (amended 2010). Beason appeals his conviction, contending that the statute s catchall contraband provision that prohibits possession of any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual, id. § 1791(d)(1)(F), is void for vagueness as applied to his conduct. * We agree and for the reasons that follow reverse his conviction. I. While in federal prison for violating the terms of his supervised release on unrelated charges, Beason acquired a cell phone. On May 20, 2010, the prison unit corrections officer observed Beason using a cell phone in his cell. Upon realizing he was being watched, Beason initially tried to hide the cell phone. Beason then surrender the phone. complied with the officer s request to The Bureau of Prisons (BOP) avers that * The statute criminalizes [w]hoever . . . being an inmate of a prison, makes, possesses, or obtains, or attempts to make or obtain, a prohibited object. . . . 18 U.S.C. § 1791(a)(2). In addition to the catchall provision at issue here, the statute specifically prohibits firearm[s] or destructive device[s], marijuana, and any United States or foreign currency. Id. § 1791(d)(1)(A),(B),(E). 3 cell phones pose significant security risks to prisons because inmates can use cell phones to arrange assaults, and coordinate escapes. fraud schemes, plan The presence of cell phones has recently escalated in Federal Correctional Institution (FCI) Morgantown, where Beason was housed. Because of this, several cases of possession were referred for prosecution in hopes of deterring the problem. Upon Handbook, entry to prepared regulations. As FCI by Morgantown, the relevant BOP, in of the each the instant inmate is prison s case, given rules the requires inmates to use the prison s phone system. a and Handbook The prison system records the calls because inmates have used the system for various improper purposes, including attempts to introduce contraband into the prison. of individuals and The prison also requires all names telephone numbers to be on the approved telephone list before a call can be placed. inmate s The prison reviews the lists and calls to ensure the safety and security of the institution. The Handbook also prohibits the possession of contraband in the prison. anything not received The BOP defines contraband as through official means. If found in violation of these rules, the Handbook alerts the inmate that he can be subject to various administrative penalties. However, at the time, the words cellular phone or mobile phone did not appear in the Handbook. Additionally, the Handbook provides for 4 punishment for a Code 108 which punishes inmates for prohibited acts, including possession of a hazardous tool. When the problem of cell phone possession escalated, the prison staff attempted to inform inmates that cell phone possession would now be prosecuted. briefings that prosecuted. phones Apparently cases of some cell inmates phone were informed possession could at be Although Beason admits that he was aware that cell were violation prohibited and that contraband and possible Code 108 could possession a subject him to administrative sanctions, he states that he did not know that possession of a cell phone could lead to prosecution. At the included time of explicitly Beason s in prohibited object[s]. 18 offense, U.S.C. § cell phones 1791 s were not definition of Beason was convicted under the catchall provision of the statute, possession of any other which object allows that discipline, or security of a prison. prosecution threatens the for order, Id. § 1791(d)(1)(F). In August 2010, Congress passed the Cell Phone Contraband Act of 2010, which amended the statute at hand and specifically makes possession of a cell phone by federal inmates illegal. Pub. L. No. 111-225, § 2, 124 Stat. 2387 (codified at 18 U.S.C § 1791). On November 23, 2010, the government filed a one-count Information, charging Beason with possession of contraband in prison. Beason then filed a motion to dismiss the Information, 5 arguing that the unconstitutionally statute, as void vagueness. for applied to his The conduct, magistrate was judge issued a Report and Recommendation (R & R) that recommended that Beason s motion to dismiss be denied. The district court adopted the magistrate s R & R and denied Beason s motion to dismiss. Beason then entered a conditional guilty plea to the offense, with the proviso that he reserved the right to appeal whether the statute is void for vagueness. plea, the probation. district court sentenced After his guilty Beason to two years of Beason timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291. II. This court reviews a district court s interpretation of a statute de novo. United States v. Nelson, 484 F.3d 257, 260 (4th Cir. 2007). Beason first argues that 18 U.S.C. § 1791 s catchall provision is void for vagueness as applied to him because the statute failed to put him on notice that possession of a cell phone was prohibited, and because of this his conviction must be set aside. A conviction does not comport with due process if the under statute which a defendant is charged: fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless 6 that it authorizes or encourages seriously discriminatory enforcement. v. Williams, 553 U.S. 285, 304 (2008). United States This analysis should be conducted bearing in mind the context in which the statute is applied. See United States v. Chatman, 538 F.2d 567, 569 (4th Cir. 1976). The government cites this Court s decision in Chatman, which found that a prior version of the statute at issue in this case was not vague. introduced facility. 24.3 538 F.2d at 569. grams Id. at 568. of marijuana In Chatman, the defendant into the correctional At that time, 18 U.S.C. § 1791 provided that [w]hoever contrary to any rule or regulation promulgated by the Attorney General, introduces or attempts to introduce into or upon the grounds of any Federal penal or correctional institution . . . anything whatsoever, 18 U.S.C. § 1791 (1976) (amended 1984), is subject to criminal penalties. Its implementing regulation gave further guidance, adding without the knowledge or consent of the warden or superintendent of such Federal penal or correctional institution is prohibited. C.F.R. § 6.1. (1975). 28 Viewing the statute in its context of operation federal prisons, this Court reasoned that: A federal penal institution has peculiar needs, and statutes designed to regulate articles being introduced into such institutions must be scrutinized in light of those needs. Pragmatically speaking, it would be virtually impossible for a single statute to catalogue the numerous items which must be prohibited in the interest of prison safety and security. 7 538 F.2d at 569 (citations omitted). The U.S.C. government § 1791 argues withstood a that the vagueness previous version challenge even broader than the statute at hand. of despite 18 being The government notes that thereafter Congress refined the definition of prohibited object[s], therefore giving even more guidance as to what is prohibited in prisons. Despite the government s arguments, we find Chatman to be inapposite for three reasons. First, the statute at hand does not provide more notice than the former version of the statute contrary is the case. at issue in Chatman. In fact, the Under the former statute s wording that prohibited anything whatsoever, it was quite clear that no item may brought into a prison. Further, there was a simple way to get clarification regarding whether an item would be allowed in the prison obtain superintendent. the consent of the warden or Pursuant to the current version, a person has no way to seek consent for possession of an item, and under this version inmates must guess at what items are prohibited. A statute that requires an inmate to guess at what exact items are prohibited fails to provide a person of ordinary intelligence fair notice of what is prohibited, Williams, 553 U.S. at 304, and is void for vagueness. Second, the challenged version of the statute specifically bans only three types of items: 8 (1) items that can inflict injury on others, such as weapons; (2) items that can cause intoxication; and (3) currency. 18 U.S.C. § 1791(d)(1)(A)-(E). Unlike firearms or drugs that are listed in the statute, a cell phone in and of itself poses no threat to safety. that cell phones might be put to bad use is a The fact reason for Congress to specifically include them like cash, see 18 U.S.C. § 1791(d)(1)(E) in include them. the statute, not to read statute to United States v. Blake, 288 F. App x 791, 796 (3rd Cir. 2008) (Rendell, J., dissenting). discernible the relationship between the In sum, there is no specifically enumerated items and a cell phone that would allow a reasonable person to infer that a cell phone would be prohibited as well. Third, unlike the marijuana in Chatman, the illegality of which is widely known to the general public, cell phones are not inherently illegal. It follows that a reasonable person would not be aware that possession of an innocuous legal item would subject them to prosecution. For all of these reasons, the statute does not provide an ordinary person fair notice that possession of a cell phone would subject him to federal criminal sanctions. The government next argues that Beason knew a cell phone could threaten the order, security, and discipline of the prison because he knew he could be disciplined for possession of the cell phone through the 9 Handbook s prohibitions on possessing contraband or by a Code 108 violation. Beason knew sanctions that for he could violation be of subjected the to The fact that administrative aforementioned Handbook provisions is of no moment in determining whether Beason had notice that his possession of a cell phone was in violation of federal law. phones were The test is not whether Beason knew that cell prohibited but rather, is whether a person of ordinary intelligence would know the conduct was prohibited by federal criminal law, not by some other rule or regulation. Id. at 797 (Rendell, J., dissenting). Here, Beason s knowledge that he was not allowed to have the cell phone does not incline us to conclude that he therefore had fair notice that his because the actions would result in federal criminal penalties. III. Accordingly, we reverse Beason s conviction statute, as applied to him, is void for vagueness. REVERSED 10 WILKINSON, Circuit Judge, dissenting: I would affirm the judgment based on the reasoning given by the district court, United States v. Beason, No. 1:10CR105, 2011 WL 399839 (N.D.W. Va. Feb. 1, 2011), and the Third Circuit in United States v. Blake, 288 F. App x 791 (3d Cir. 2008). practical effect of this whole matter, however, is limited. The As the majority notes, Congress has since amended the statute at hand [to] specifically make[] federal inmates illegal. possession of a cell phone by Ante at 5 (citing Pub. L. No. 111- 225, § 2, 124 Stat. 2387 (codified at 18 U.S.C. § 1791)). 11
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